IN THE MATTER OF THE CLAIM OF: ALLEN VILLEGAS, Claimant,
v.
DENVER WATER, Employer,
and
TRAVELERS INDEMNITY CO., Insurer, Respondents.
and
DR HUGH MACAULAY.
W.C. No. 4-889-298-002
Colorado Workers Compensation
Industrial Claim Appeals Office
February 5, 2021
CHRIS
FORSYTH LAW OFFICE LLC, Attn: CHRIS FORSYTH ESQ, (For
Claimant)
HALL
& EVANS LLC, Attn: DOUGLAS J KOTAREK ESQ, C/O: KENDRA G
GARSTKA ESQ, (For Respondents)
ORDER
The
claimant seeks review of approximately sixteen orders of
Administrative Law Judges (ALJ) Cannici and Jones, and
Prehearing Administrative Law Judge (PALJ) Martinez Tenreiro,
mailed on July 5, 2019, January 7, 8, 23, 31, March 2, 3, 4
6, 12, 17 24, and 25, 2020, that ruled in regard to a variety
of pleading and discovery disputes. The March 17, 2020, order
of ALJ Cannici granted the respondents’ motion for
summary judgment and denied the claimant’s request to
reopen the claimant’s claim, for additional temporary
and permanent disability benefits and to assess penalties
against the employer, the insurance carrier and Dr.
Macaulay.[1]
After
review of the record transmitted to us by the Office of
Administrative Courts (OAC), pursuant to § 8-43-301(9)
C.R.S. we remand that portion of the appeal pertinent to the
striking of a hearing scheduled for April 22, 2020, to the
OAC, and direct the ALJ and the OAC to provide, or to
reconstruct with the assistance of the parties, the pleadings
and orders filed in that matter and then to submit that
record to us for review. Pursuant to § 8-43-318, C.R.S.,
we retain jurisdiction to ensure compliance with the remand
and for further review once the record is resubmitted.
Section
8-43-301(2), C.R.S., requires that any party dissatisfied
with an order of the director is to file a petition to review
with the division of workers’ compensation. The
petition to review before us was not filed with the division,
but only with the OAC.[2]Accordingly, we may not review the
orders of PALJs in this matter, but will limit review to the
orders of ALJs with the OAC.
While
the record submitted does not include every document
referenced by the parties in their briefs, after a thorough
review, we note no dispute among the parties as to the filing
and dating of any pleadings or orders nor is there a dispute
as to their contents. The briefs of the parties are also
thorough in their description and positions of the parties as
submitted both to us and to the ALJs involved. We conclude
the record is sufficient to allow for review of ALJ
Cannici’s March 17, 2020, grant of summary judgment. In
that regard, we reverse the ALJ’s order insofar as it
applies to Dr. Macaulay and otherwise affirm the order.
I.
The
claimant sustained an admitted injury to his back on February
15, 2012. The claimant was placed at maximum medical
improvement (MMI) on July 15, 2015, by a Division sponsored
Independent Medical Examination (DIME) physician and assigned
a 17% permanent impairment rating. The respondents filed a
Final Admission of Liability adopting the impairment rating
on September 8, 2015, and admitted for maintenance medical
benefits after MMI. The claimant did not dispute the findings
of the DIME physician but requested a hearing pertinent to
the issue of permanent total disability benefits. Following a
hearing in May and July 2016, ALJ Nemechek issued an order on
March 5, 2017, denying the request for permanent total
benefits. The ALJ’s order was affirmed on appeal to the
Industrial Claim Appeals Office on August 22, 2017. That
order was appealed to the Court of Appeals and was affirmed
on September 20, 2018. The Supreme Court denied certiorari on
January 7, 2019. The claim thereupon closed.
On
April 4, 2019, the claimant filed a Petition to Reopen for
the reason of fraud. The claimant also submitted an
application for hearing on that date requesting penalties,
additional temporary and permanent partial disability
benefits, and medical benefits. The claimant asserted a
request for penalties against the respondent employer, the
insurance carrier, and against Dr. Macaulay. The claimant
listed 65 allegations of penalties occurring between the
dates of March 5, 1998, and June 27, 2012. Claimant asserted
violations of § 8-43-203(3)(b)(IV) C.R.S., for violating
the claimant’s right to refuse to have a nurse case
manager present at the claimant’s medical appointments,
of §8-47-203(1) against Dr. Macaulay for unnecessarily
allowing nurse case managers to see the claimant’s
medical file, and § 8-42-101(3.6)(p)(II) for forcing the
claimant into case management without offering case
management. The claimant requested penalties pursuant to
§ 8-43-304(1). The claimant asserted he first became
aware of the facts giving rise to the penalties on April 5,
2018, when the supervisor of the Denver Water clinic stated
in a hearing involving another worker’s claim for
workers’ compensation benefits that the staff at the
Denver Water in-house clinic, where the claimant had been
treated for two months in 2012, were nurse case managers and
that status had never been disclosed to the injured workers.
The
date for a hearing on the claimant’s application was
set and then postponed to February 3, 2020, due to discovery
disputes. On January 3, 2020, the respondents submitted a
Motion for Summary Judgment. The Motion asked that the
claimant’s application for hearing be stricken and his
requests for penalties and benefits be denied. Among the
several bases for the Motion, the respondents maintained the
statute of limitations for reopening set forth in §
8-43-303(1) and (2) had run prior to the claimant’s
request to reopen in April 2019. Without an open claim, the
respondents asserted the claimant was barred from requesting
penalties or additional benefits previously closed by the
2015 Final Admission of Liability. On March 17, 2020, ALJ
Cannici granted the Motion for Summary Judgment finding the
period of limitations for reopening had indeed run prior to
the claimant’s request to reopen. The ALJ rejected the
claimant’s contention that the limitations period was
subject to equitable tolling and therefore should not
prohibit reopening. The ALJ thereby denied the petition to
reopen and dismissed the application for hearing.
On
appeal the claimant contends the granting of summary judgment
represents error for a variety of reasons. The claimant
asserts the ALJ did not have authority to rule on a motion
when no hearing was pending. It is argued the ALJ had
presided over previous hearings involving the same employer
and that involved similar issues. The claimant maintains the
ALJ is both a witness to the challenged conduct of the
employer and is biased as indicated by his rulings in those
cases. It is asserted the respondents did not endorse as an
issue for hearing the statute of limitations in its original
response to the application for hearing and has therefore
waived the defense. It is argued the statute of limitations
was subject to equitable tolling. The claimant states it is
not necessary to have an open claim in order to pursue
penalties. We find no error.
II.
The
claimant asserts an ALJ is only provided authority by §
8-43-207(1) to act “In connection with hearings.”
A hearing on the issues included in the claimant’s
application for hearing was...
